Telangana High Court

Ramakrishna T.N. vs The Government Of India on 15 December, 2021

Bench: Satish Chandra Sharma, N.Tukaramji

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                     AND
          THE HON'BLE SRI JUSTICE N. TUKARAMJI


                   WRIT APPEAL No.162 of 2019


JUDGMENT:     (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


     The present writ appeal is arising out of an order

dated 14.06.2017 passed by the learned Single Judge in

W.P.No.12342 of 2011.

     The facts of the case reveal that the appellant was

serving as a Constable in Central Reserve Police Force.

He was appointed in the year 1997. He applied for leave

for 15 days in the year 2005 and the leave expired on

15.09.2005.       He was supposed to report to duty on

16.09.2005 and as he did not report to duty, he was

declared as deserter vide office order dated 27.02.2006

by invoking provisions as provided under Rule 31(c) of

the Central Reserve Police Force Rules, 1955 (for short,

the Rules).     A charge memo was issued on 04.03.2006

and thereafter, an enquiry officer was appointed. Before

the enquiry officer, the appellant pleaded guilty of the

misconduct. It was also stated by the appellant that he

was suffering from Jaundice and thereafter, the enquiry

officer submitted a report holding the charge established.

A copy of the enquiry report was furnished to the

appellant. The appellant submitted his explanation and
                                         2




the disciplinary authority not being satisfied with the

explanation submitted by the appellant passed the order

of dismissal from service on 25.06.2006.                           The appeal

preferred against the same was rejected on 20.01.2007

and the revision was also rejected on 24.06.2010. The

writ petition was preferred challenging the order of

dismissal   and      it        was      pleaded           that    some     minor

punishment       should         have        been      inflicted        upon    the

appellant and it was also argued before the learned

Single Judge that the appellant was suffering from

Jaundice and therefore, some lenient view should have

been taken by the employer. The learned Single Judge

has dismissed the writ petition and paragraphs 14 to 17

of the order passed by the learned Single Judge are

reproduced as under:

     "14. Coming back to the issue, admittedly petitioner
     deserted the force and was absent for 248 days. The
     Central Reserve Police Force is required to deal with
     any contingency on security of the country and Force
     has to be attentive and alert to respond to any threat
     to grave law and order and security. It must keep its
     personnel    alert    and         ready   to     respond      to   any
     emergency.    The         Force    makes       its    assessment     of
     readiness by counting on number of personnel on
     duty. Thus, if a Constable of the Force remains absent
     for a long time, it would certainly cause grave
     inconvenience        on     its    alertness         and    may    have
     deleterious effect in overall readiness of Force for
     maintenance of peace in the country. Therefore,
                                 3



absence from duty of a Constable from the Central
Reserve Police Force and more so, when such absence
was for a very long time has to be viewed seriously and
cannot be treated as minor misconduct.



15. In State of Punjab v Dr. P.L.Singla ((2008) 8 SCC
469), Supreme Court held as under:

       "14. Where the employee who is unauthorisedly
       absent does not report back to duty and offer any
       satisfactory explanation, or where the explanation
       offered by the employee is not satisfactory, the
       employer will take recourse to disciplinary action
       in regard to the unauthorised absence. Such
       disciplinary proceedings may lead to imposition of
       punishment ranging from a major penalty like
       dismissal or removal from service to a minor
       penalty like withholding of increments without
       cumulative effect. The extent of penalty will depend
       upon the nature of service, the position held by the
       employee, the period of absence and the
       cause/explanation for the absence. Where the
       punishment is either dismissal or removal, it may
       not be necessary to pass any consequential orders
       relating to the period of unauthorised absence
       (unless the rules require otherwise). Where the
       punishment awarded for the unauthorised
       absence, does not result in severance of
       employment and the employee continues in
       service, it will be necessary to pass some
       consequential order as to how the period of
       absence should be accounted for and dealt with in
       the service record. If the unauthorised absence
       remains unaccounted it will result in break in
       service, thereby affecting the seniority, pension,
       pay, etc. of the employee. Any consequential order
       directing how the period of absence should be
       accounted, is an accounting and administrative
       procedure, which does not affect or supersede the
       order imposing punishment."

16. Central Reserve Police Force provides medical
facilities   to   its   members.      Even    assuming        that
petitioner was affected by 'Jaundice' and could not
have returned to his unit where he was working, he
ought to have informed his unit and got admitted to
authorized hospital to take treatment. Thus, on the
plea of suffering with Jaundice, petitioner could not
have remained absent from duty for such a long time
without informing the competent authority the reason
of his absence. It is also appropriate to note from the
record that several reminders were sent to the
petitioner to report to duty, but he did not respond.
                                  4



     This entire issue was assessed by the enquiry officer
     and has not accepted the plea sought to be raised by
     the petitioner on his absence on the ground that he
     was hospitalized for taking treatment of jaundice.

     17. I see no reason to upset the finding of fact
     recorded by the enquiry officer and accepted by the
     disciplinary authority. No case is made out for
     interference. Writ petition deserves to be dismissed
     and is accordingly dismissed.

            Miscellaneous petitions, if any, pending in this
     writ petition shall stand closed."

     This    Court     has    carefully   gone    through      the

documents on record. No procedural irregularity has

been pointed out in the matter of departmental enquiry.

The departmental enquiry was held in consonance with

the statutory provisions as contained under the Central

Reserve Police Force Act, 1949 (for short, the Act), read

with the Rules.

     Learned counsel for the appellant, before this Court,

has vehemently argued that some lesser punishment

should have been given to the appellant keeping in view

Section 10 of the Act.

     Sections 10 and 11 of the Act are reproduced as

under:

     "10. Less heinous offences - Every member of the
     Force who--
     (a)    is in a state of intoxication when on, or after
            having been warned for, any duty or on parade
            or on the line of march; or
                             5



(b)   strikes or attempts to force any sentry; or

(c)   being in command of a guard, picquet or patrol,
      refuses to receive any prisoner or person duly
      committed to his charge, or without proper
      authority releases any person or prisoner placed
      under his charge, or negligently suffers any such
      prisoner or person to escape; or

(d)   being under arrest or in confinement, leaves his
      arrest or confinement, before he is set at liberty
      by lawful authority; or

(e)   is grossly in subordinate or insolvent to his
      superior officer in the execution of his office; or

(f)   refuses to superintend or assist in the making of
      any field-work or other work of any description
      ordered to be made either in quarters or in the
      field; or

(g)   strikes or otherwise ill-uses any member of the
      Force subordinate to him in rank or position; or

(h)   designedly or through neglect injuries or loses or
      fraudulently disposes of his arms, clothes, tools,
      equipments, ammunition or accoutrements, or
      any such articles entrusted to him or belonging
      to any other person; or

(i)   malingers or feigns or produces disease or
      infirmity in himself, or intentionally delays his
      cure, or aggravates his disease or infirmity; or

(j)   with intent to render himself or any other person
      unfit for service, voluntarily causes hurt to
      himself or any other person; or

(k)   does not, when called upon by his superior
      officer so to do or upon ceasing to be a member
      of the Force forthwith deliver up, or duly
      account for, all or any arms, ammunition,
      stores, accoutrements or other property issued
      or supplied to him or in his custody or
      possession as such member; or
                               6



(l)   knowingly furnishes a false return or report of
      the number or state of any men under his
      command or charge or of any money, arms,
      ammunition, clothing, equipments, stores or
      other property in his charge, whether belonging
      to such men or to the Government or to any
      member of, or any person attached to the Force,
      or who, through design or culpable neglect,
      omits or refuses to make or send any return or
      report of the matters aforesaid; or

(m)   absents    himself     without   leave,   or   without
      sufficient cause overstays leave granted to him;
      or

(n)   is guilty of any act or omission which, though
      not specified in this Act, is prejudicial to good
      order and discipline; or

(o)   contravenes any provision of this Act for which
      no punishment is expressly provided; or

who, while not on active duty--,

(p)   commits    any    of    the   offences    specified   in
      clauses (e) to (l) (both inclusive) of section 9,

shall be punishable with imprisonment for a term
which may extend to one year, or with fine which may
extend to three months' pay, or with both.


11. Minor punishments - (1) The Commandant or any
other authority or officer as may be prescribed, may,
subject to any rules made under this Act, award in
lieu of, or in addition to, suspension or dismissal any
one or more of the following punishments to any
member of the Force whom he considers to be guilty of
disobedience, neglect of duty, or remissness in the
discharge of any duty or of other misconduct in his
capacity as a member of the Force, that is to say,--
(a)   reduction in rank;
                                 7



(b)   fine of any amount not exceeding one month's
      pay and allowances;

(c)   confinement to quarters, lines or camp for a
      term not exceeding one month;

(d)   confinement in the quarter-guard for not more
      than       twenty-eight       days,    with   or   without
      punishment drill or extra guard, fatigue or other
      duty; and

(e)   removal from any office of distinction or special
      emolument in the Force.

(2)   Any    punishment         specified      in   clause (c) or
clause (d) of sub-section (1) may be awarded by any
gazetted officer when in command of any detachment
of the Force away from headquarters, provided he is
specially    authorised        in     this    behalf     by   the
Commandant.

(3)   The assistant commandant, a company officer or
a subordinate officer, not being below the rank of
subedar     or    inspector,        commanding      a    separate
detachment or an outpost, or in temporary command
at the headquarters of the Force, may, without a
formal trial, award to any member of the Force who is
for the time being subject to his authority any one or
more of the following punishments for the commission
of any petty offence against discipline which is not
otherwise provided for in this Act, or which is not of a
sufficiently serious nature to require prosecution
before a criminal Court, that is to say,--

(a)   confinement for not more than seven days in the
      quarter-guard or such other place as may be
      considered suitable, with forfeiture of all pay and
      allowances during its continuance;

(b)   punishment drill, or extra guard, fatigue or other
      duty, for not more than thirty days, with or
      without confinement to quarters, lines or camp;

(c)   censure or severe censure:
                                            8



                 Provided that this punishment may be awarded
       to a subordinate officer only by the Commandant.

       (4)       A jemadar or sub-inspector who is temporarily
       in command of a detachment or an outpost may, in
       like manner and for the commission of any like
       offence, award to any member of the Force for the time
       being subject to his authority any of the punishments
       specified in clause (b) of sub-section (3) for not more
       than fifteen days."


       Rule 27 of the Rules is reproduced as under:-

       "27. Procedure for the Award of Punishments:
       (a) The Punishments shown as items 1 to 11 in column
       2 of the table below may be inflicted on non-Gazetted
       Officers and men of the various ranks shown in each
       of the headings of columns 3 to 6, by the authorities
       named below such headings under the conditions
       mentioned in column 7:



                                      TABLE
Sl.   Punishment      Subedar       Sub-        Others         Const &     Remarks
No.                   (Inspector)   Inspector   except Const   enrolled
                                                & enrolled     followers
                                                followers

 1           2            3            4             5             6             7

1.

Dismissal or DIGP DIGP Comdt. Comdt. To be removal inflicted after from the formal Force departmental enquiry.

2. Reduction to DIGP DIGP Comdt. Comdt.

a lower time-scale of pay, grade, post or service.

3. Reduction to DIGP DIGP Comdt. Comdt.

a lower stage in the time-scale of pay for a specified period.

4. Compulsory DIGP DIGP Comdt. Comdt. To be retirement inflicted after formal departmental enquiry.

5. Fine of any DIGP DIGP Comdt. Comdt.

amount not exceeding one month's pay and allowances.

6.    Confinement        -        -            -         Comdt.
      in the
      Quarter
      Guard
      exceeding
      seven days
      buy not
      more than
      twenty-eight
      days with or
      without
      punishment
      drill or extra
      guard
      fatigue or
      other duty.

7.    Stoppage of      DIGP     DIGP        Comdt.       Comdt.
      increment.

8.    Removal          DIGP     DIGP        Comdt.       Comdt.     May be
      from any                                                      inflicted
      office of                                                     without a
      distinction                                                   formal
      or special                                                    departmental
      emolument                                                     enquiry.
      in the Force.

9.    Censure          Comdt.   Comdt.    Asstt.Comdt.   A.Comdt.
                                             or Coy       or Coy
                                            Comdr.        Comdr.

10.   Confinement        -        -            -         Comdt.
      to Quarter
      Guard for
      not more
      than seven
      days with or
      without
      punishment
      or extra
      guard
      fatigue or
      other duty.

11.   Confinement        -        -            -         Comdt.
      to quarters
      lines, camp,
      punishment
      drill, fatigue
      duties etc.
      for a term
      not
      exceeding
      one month.




Note:-1.       When     the   post   of   Deputy      Inspector

General remains unfilled for a period of over one month at a time the Commandant shall exercise the powers of punishing the Subedars (Inspectors) and Sub Inspectors except the powers of ordering dismissal or removal from the force.

Note:- 2. When the post of Commandant remains unfilled for a period of over one month at a time consequent on the incumbent proceeding on leave or otherwise, the Assistant Commandant shall exercise the powers of punishment vested in the Commandant, except the powers of ordering dismissal or removal from the Force.

Explanation:- (a) Dismissal of a member of the Force precludes him from being re-employed in Government service, while removal of any such member from the Force shall not be disqualification for any future employment (other than an employment in the Central Reserve Police Force) under the Government.

(b) When non-gazetted officers or men of the various ranks are to be punished for any offence, a departmental enquiry, if necessary under clause (a), shall be held by the Commandant or other superior officer under the orders of the Commandant, provided that when the charge is against an officer of the rank of Subedar (Inspector) or Sub-Inspector the enquiry shall be held by an authority to be designated for the purpose by the Deputy Inspector General. Where the officer conducting the enquiry in the case of a Subedar (Inspector) or a Sub-Inspector considers that a punishment under items (1) to (5) and (7) of the Table is called for, he shall complete the departmental proceedings and forward the departmental proceedings and forward the same to the Deputy Inspector General for orders.

(1) The substance of the accusation shall be reduced to the form of a written charge, which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least 48 hrs. before the commencement of the enquiry.

(2) At the commencement of the enquiry the accused shall be asked to enter a plea of "Guilty" or "Not Guilty" after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral;

            (i)     it shall be direct;
            (ii)    it shall be recorded by the Officer

conducting, the enquiry himself in the presence of the accused;

(iii) the accused shall be allowed to cross examine the witnesses.

(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence, be allowed to inspect such exhibits.

(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If he accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads "Not guilty", he shall be required to file a written statement, and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting

enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.

(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case, he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders. (6) If the Commadant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings, to the Commandant who shall record his findings and pass orders, where he has power to do so.

(cc) Notwithstanding anything contained in this rule-

(i) where any penalty is imposed on a member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) where the authority competent to impose the penalty is satisfied for reasons to be

recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these rules; or

(iii) where the Special Director - General or Additional Director - General heading zone or Director - General is satisfied that in the interest of security of the State, it is not expedient to hold any enquiry in the manner provided in these rules, the authority competent to impose the penalty may consider the circumstances of the case and make such orders thereon as it deems fit.

(ccc) When a member of the Force has been tried and acquitted by a criminal court, he shall not be punished departmentally under this rule on the same charge or on a similar charge upon the evidence cited in the criminal case, whether actually led or not except with the prior sanction of the Inspector General.

(d) (1) Where two or more members of the Force, including those on deputation to the Force are concerned in any case, the Inspector General or any other authority competent to impose the penalty of dismissal from service on all such members of the Force may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

Note - Where in such a proceeding, the misconduct of a deputationist is to be dealt with, the consent of the disciplinary authority competent to impose the penalty of dismissal shall be obtained for the taking of such a disciplinary action.

(2) Such order shall specify-

(i) the authority which may function as the disciplinary for such a common proceeding;

(ii) the penalties specified in the table of sub-rule

(a) above which such disciplinary authority shall be competent to impose;

(iii) whether such disciplinary authority shall hold the Departmental enquiry himself or may designate any other enquiry officer for that purpose; and,

(iv) that the enquiry shall be held in accordance with the provisions of sub rule (a) and sub rule

(c)."

In the present case, in the light of the aforesaid

statutory provisions of law, the appellant was declared as

a deserter after conducting an enquiry. Office order was

passed declaring him as a deserter and in the case of a

deserter, keeping in view Rule 27 of the Rules, major

punishment has rightly been inflicted upon the

appellant. It is not a case of overstay for a period of few

days. It is overstay for a period of 248 days. The other

important aspect of the case is that the appellant is a

habitual offender so far as overstay without leave is

concerned. He was absent for 74 days from 10.02.2000

to 23.04.2000. He was absent for 97 days from

15.02.2002 to 22.05.2002. He was again absent without

any leave from 16.03.2003 to 17.03.2003 i.e., for 2 days

and again from 23.05.2005 to 18.06.2005 i.e., for 27

days and in those circumstances, the disciplinary

authority has inflicted a punishment of dismissal from

service. This Court does not find any reason to interfere

with the order passed by the learned Single Judge.